Crago v. Kinzie

• Decision Date: 01 June 2000
• Docket Number: No. 95-H-203.,95-H-203.
• Parties: CRAGO v. KINZIE.
• Court: Ohio Court of Common Pleas

106 Ohio Misc.2d 51

733 NE 2d 1219

CRAGO v. KINZIE.^*

No. 95-H-203.

Court of Common Pleas of Ohio, Harrison County.

Decided June 1, 2000.

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WILLIAM F. CHINNOCK, Judge.

This opinion examines and weighs age-old fundamental rules of equity against contemporary scientific principles surrounding genetic testing to disestablish paternity.

History of the Case

This is a juvenile court action in which a putative father attempts to disestablish himself as the biological father of two children through genetic testing. He makes this attempt almost a decade after identifying himself on birth certificates as the father of the children born to the unmarried woman with whom he was living at the time of their births. This the law does not permit him to do.

This juvenile court action originated as a child support action filed by the mother of two children under R.C. 3103.03 at the behest of the local child support enforcement agency, through which the children were receiving public assistance. On January 23, 1996, this court ordered the putative father to pay child support for the children to the welfare agency in the minimal sum of $50 per month for both children, without a formal determination of parentage being made, under R.C. 2151.231 (Action for Child Support Order). This statute specifically provides that a child support order issued under it does not preclude a subsequent action to establish or disestablish the parent/child relationship, if the parentage issue was not determined in the child support action.

Plaintiff mother and defendant father were living together as husband and wife, although not married, when the children, Jay Thomas Kinzie (DOB 7/23/91) and Meranda Marie Kinzie (DOB 6/24/92) were born. Both children's birth certificates list their surname as "Kinzie"; both children's birth certificates specify "Walter J. Kinzie" as their father; and both children's birth certificates are signed by "Walter J. Kinzie" and "Cynthia L. Crago" as "parent or other informant" under the acknowledgment "I certify that the personal information provided on this certificate is correct to the best of my knowledge and belief."

In June 1999, approximately eight years after the birth of Jay and seven years after the birth of Meranda, the father requested the court to direct the mother and children to undergo genetic testing to determine the nonexistence of a parent/child relationship between him and the children. The mother filed objections to the request. The putative father argues that the paternity of the minor children has never been established and that he is entitled to have genetic testing to establish the existence or non-existence of a parent/child relationship. The putative father correctly states that the child support hearing conducted January 23, 1996 did not result in a finding of paternity, but only in a finding of child support; he also correctly states that the paternity of the minor children has never been established by a court of law. Neither of these issues, however, is determinative of the case. The determining issue can be stated as follows: Did the putative father take some action or refrain from taking some action that he reasonably should have taken, which gave rise to a conclusion, reasonably relied upon by the children, the mother, or the public, which now precludes him from attempting to establish the contrary of that conclusion?

The putative father argues that his actions at the time of the birth of the children do not fully and finally resolve the issue of paternity, but merely give rise to a presumption of paternity that can be overcome by clear and convincing evidence, which is now available through genetic testing. To reiterate, defendant's actions, which he claims create only a rebuttable presumption regarding his paternity, include (a) granting his surname to the children on their birth certificates, (b) specifying himself to be the "father" of the children on their birth certificates, and (c) signing the children's birth certificates containing this information under the legend "I certify that the personal information provided on this certificate is correct to the best of my knowledge and belief."

Basis of Decision

In reliance upon statutes, case law, public policy, rules of equity, and the "best interests of the child" standard, this court finds the father's argument to be without merit and holds that his voluntary and unequivocal actions taken at the times of the births of the children constitute binding acknowledgments of paternity. This, in turn, precludes him at this late date from attempting to establish the contrary. An "acknowledgment" is "a clear recognition," "a direct unqualified admission," "a distinct unconditional recognition." 1A Corpus Juris Secundum (1985) 144.

"Presumptions" and "Birth Certificate" Statutes

Ohio's statute on presumptions as to the father and child relationship, R.C. 3111.03, and the birth certificate statute, R.C. 3705.09(F), which were in effect at the time of the children's births (1991 and 1992), are interrelated and relevant.

The "presumption" law at that time provided that "a man is presumed to be the natural father of a child where he * * * signs the child's birth certificate as an informant as provided in section 3705.09 of the Revised Code." Former R.C. 3111.03, 142 Ohio Laws, Part III, 5346.

The "birth certificate" law at that time provided that where the mother is not married, "if both the mother and the father sign the birth certificate as informants," "the name of the father of such child shall * * * be inserted on the birth certificate" and "in such a case the child may be registered by the surname of the father if the mother and father so designate." (Emphasis added.) Former R.C. 3705.09(F), 143 Ohio Laws, Part IV, 6036.

As can readily be seen, the presumption statute creates a presumption of paternity where the man signs the birth certificate as an informant. The birth certificate statute goes even further by speaking in terms of the "father" where, as in the case at bar, both the mother and the father sign the birth certificate as informants, and register the child by the surname of the father. The legislature's use of the term "father" demonstrates its intention to provide that where the unmarried mother and a man take these actions, they make a binding acknowledgment that the man is in fact the putative father, also known as the "unwed biological father." In re Adoption of Greer (1994), 70 Ohio St.3d 293, 638 N.E.2d 999. Such action constitutes more than "a mere presumption"; it constitutes a binding acknowledgment of paternity. Any contrary interpretation of the language of the statute would be nonsensical.

The putative father argues that the presumption statute, R.C. 3111.03, specifies that presumptions arising under it can be rebutted by clear and convincing evidence, and it is undisputed that genetic testing meets this standard of proof. The presumption statute was first enacted in 1982, and over the past two decades has been amended a half-dozen times, including its July 1, 2000 version. Under the statute's recent versions, signing the birth certificate is no longer specified as creating a presumption of paternity and genetic testing is deemed to give rise to a determination of paternity, which controls over a presumption of paternity. It should not go unnoticed, however, that the terms "determination" and "presumption" relate to establishing paternity and not to disestablishing paternity. Under the 1991 version that was in effect at the time of the births of the children, the act of the man signing the birth certificate creates a presumption of paternity, and genetic testing is not mentioned in the statute. In Interest of W.M.V. (N.D.1978), 268 N.W.2d 781 (law in effect at time of child's birth is applicable in paternity actions unless legislature manifests an intention to contrary). Further, both the 1991 and 2000 versions of the statute provide that if two presumptions arise under it, "the court shall determine, based upon logic and policy considerations, which presumption controls"; this language demonstrates the intent of the legislature for the court to use its discretion to balance the equities, taking into consideration not only the rights of the father, but also the rights of the child, the mother, and the public in rendering its decision.

Best-Interests-of-Child Statute and Case Law

The Ohio Juvenile Code mandates that it "shall be liberally interpreted and construed so as to * * * provide for the care, protection, and mental and physical development of children." R.C. 2151.01. The "overriding concern" of the Ohio legislature in enacting the child support law, R.C. 3113.215, was to ensure the best interests of the child. "This fact is evident from R.C. 3113.215, where the phrase `best interest of the children' is used thirteen times." Marker v. Grimm (1992), 65 Ohio St.3d 139, 141, 601 N.E.2d 496, 498. Ohio's version of the Uniform Parentage Act, R.C. 3111.13(C), mandates that any court order issued under it must be in "the best interests of the child." Broxterman v. Broxterman (1995), 101 Ohio App.3d 661, 656 N.E.2d 394.

For at least a century and a half, the "best interests of the child" standard has been the polestar for Ohio courts in determining matters involving children. Gishwiler v. Dodez (1855), 4 Ohio St. 615, paragraph two of the syllabus ("In such a controversy for the custody of a child incapable of electing for itself, the order of the court should be made with a single reference to its best interests").

This legislative and case law mandate is in accord with the "best interests" standard adopted by sister states. In Michael K.T. v. Tina L.T. (1989), 182 W.Va. 399, 387 S.E.2d 866, the court established a procedure for equitable in camera "best interests" hearings by which the court...